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NOTES

CO N S TI TU TI O N A L HISTORY-DEVELOPMENT OF ADMIRALTYJURISDICTION IN TH E UNITED STATES, 1789-1857

I. INTRODUCTION

The federal constitutional grant of "all cases of admiralty andmaritime jurisdiction"1 was the center of bitter controversy throughout much of the first half of the nineteenth century. In 1789, when theConstitution was adopted, admiralty jurisdiction here and in Englandwas limited to a handful of maritime cases arising on the high seas.2Nevertheless, by 1857,3 federal judges sitting in admiralty had acquired a jurisdiction which permitted them to hear cases arisingwholly within a state and between citizens of the same state. Such adevelopment cut across the Diversity Clause as well as the states'righters' attitudes towards the territorial integrity of individual states.Consequently, the debate over the proper reach of admiralty jurisdiction figured prominently in the constitutional and political criseswhich culminated in the Civil War.

This article traces the development of federal admiralty jurisdiction from its modest beginnings in the constitutional grant to the CivilWar, when federal district courts sitting in admiralty acquired the jurisdiction they have today. Because American admiralty jurisdictionwas almost always considered in light of English and colonial precedent, it is necessary to examine in some detail the jurisdiction of the1. u.s. CONST. art. III, 2.2. English admiralty jurisdiction in 1802 was "confined in matters of contract, tosuits for seamen's wages, or those on hypothecations; in matters of tort to actions for as

sault, collision, or spoil; and in quasi-contracts to actions by part owners for security, andactions of salvage." 12 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 692 (1973)(quoting A. BROWNE, 2 CIVIL LAW 122 (1802. Browne was Professor of Civil Law atthe University of Dublin, and his two volume work was frequently cited as authority byfederal courts. Marshall cited Browne in Jennings v. Carson, 8 U.S. (4 Cranch) 2, 23(1807).3. The last sustained dissents to the Supreme Court's expansive interpretation of theadmiralty grant appeared in Jackson v. Magnolia, 61 U.S. (20 How.) 296 (1857).

157

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158 WESTERN NEW ENGLAND LAW REVIEW (Vol. 8:157English High Court of Admiralty and the colonial vice-admiraltycourts before turning to the activity of the federal courts after 1789.

II. . ENGLISH AND AMERICAN ADMIRALTY JURISDICTION BEFORE 1789

The jurisdiction of the English High Court of Admiralty in theeighteenth century was the product of several centuries of ultimatelyunsuccessful quarrelling with the common law courts over jurisdictional boundaries.4 The common law courts triumphed during theseventeenth century. Through vigorous use of the writ of prohibitionthey succeeded in restricting admiralty jurisdiction to matters arisingexclusively on the high seas.5 Subject matter jurisdiction as such didnot exist, for the locale of the incident or transaction giving rise to theaction was determinative. Thus, a writ would issue enjoining an admiralty proceeding when part of the transaction occurred on land.The colonial vice-admiralty courts, like the English High Court

of Admiralty to which they were subordinate, were simiiarly subject tothe writs of prohibition issuing from colonial common law courts.The vice-admiralty courts nevertheless possessed greater latitude indeciding cases which would have drawn a writ of prohibition in England. Moreover, because of special long-standing statutory authority,the vice-admiralty courts had concurrent jurisdiction with the colonialcommon law courts over actions arising from breaches of the revenue,trade, and navigation laws. Such cases in England were tried only atcommon law before a jury. During the Revolution and the Confederation, the individual states established admiralty courts whose jurisdiction reflected the traditional English common law gloss on admiraltyjurisdiction. Thus, on the eve of the adoption of the Constitution,admiralty jurisdiction in the United States bore the contours of contemporaneous English practice.

Two statutes passed during the reign of Richard II restricted thejurisdiction of the English admiralty courts. By the first of these statutes, passed in 1389, admirals and their deputies were forbidden to"meddle henceforth of anything done within the realm, but only of athing done upon the sea."6 By the second, passed in 1391, admiraltywas deprived of jurisdiction over "all manner of contracts, pleas and

4. See F. WISWALL, JR., TH E DEVELOPMENT OF ADMIRALTY JURISDICTION ANDPRACTICE SINCE 1800, AN ENGLISH STUDY WITH AMERICAN COMPARISONS 1-19 (1970).5. For example, an action on a debt created on the high seas could be tried only atcommon law if the payment was on land. Bridgeman's Case, 80 Eng. Rep. 162 (K.B.1614).6. 13 Rich. 2, ch. 5.

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1986] DEVELOPMENT OF ADMIRALTY 159 quereles and of all other things done or arising within the bodies ofcounties, as well by land as by water.'" The English common lawcourts had a centuries-long quarrel with the admiralty courts over jurisdictional boundaries. Each claimed that the other encroached on itsjurisdiction. By the middle of the seventeenth century the commonlaw courts acquired the upper hand. 8The common law courts' success was owing principally to the labors of Lord Coke who developed effective use of the writ of prohibition pro defectu jurisdictionis.9 A defendant in an admiraltyproceeding applied to the King's Bench for a writ of prohibition, andif the court agreed that common law properly had jurisdiction, a writissued enjoining the admiralty judge from hearing the case. This naturally had the effect of forcing the plaintiff in the admiralty proceedingto bring his action at common law if he wanted to maintain it.

The King's Bench, basing its authority for the writs of prohibitionon the statutes of Richard II, built a substantial body of case law defining admiralty jurisdiction. In determining what was within the bodyof a county, the King's Bench gradually excluded admiralty from jurisdiction over navigable inland waterways, ports, and havens. Thus,the locality over which the admiralty courts had jurisdiction was thearea within the ebb and flow of the tide, except, of course, where thetide intruded into the body of a county.

As part of the restriction to locale, the common law courts ingeniously justified a rule excluding admiralty from jurisdiction over mostmaritime contracts. Reasoning that both making and performancewere part of a contract, the common law took jurisdiction over contracts made on land, though the contemplated performance was veryclearly within the ebb and flow of the tide and without the body of acounty. Naturally, only torts committed within the ebb and flow ofthe tide and without the body of a county were properly cognizable inadmiralty. 10

7. 15 Rich. 2, ch. 3. A third statute, 2 Hen. 4, ch. 11, enacted in 1400, gave a defendant wrongfully sued in admiralty a cause of action for double damages at common law.8. See generally, I W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 548-59 (1971).9. The common law courts also used writs of certiorari, supersedeas, and mandamusto prevent admiralty courts from hearing certain cases. Id. Another device was the use ofnontraversable fictions in pleading, such as an allegation that the underlying transactionoccurred at Cheapside. See Talbot v. Three Brigs, I Oall. 95, 99 (Pa. 1784).10. "Torts committed on the high seas; contracts made on the high seas to be thereexecuted; proceedings in rem on bottomry bonds executed in foreign parts; the enforcement

of judgments of foreign Admiralty courts; suits for the wages of mariners-were almost theonly pieces of jurisdiction which it was allowed to exercise." 1 W. HOLDSWORTH, supranote 8, at 557.

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160 WESTERN NEW ENGLAND LAW REVIEW [Vol. 8:157Although the subject of much debate in the United States duringthe first few decades of the nineteenth century, I I it is clear that thecolonial vice-admiralty courts in North America were at least formallybound by the restrictions placed on the English High Court of Admiralty, to which the vice-admiralty courts were inferior. 12 The few ex

tant reports of vice-admiralty proceedings show frequent references tothe phrase "within the body of a county" and occasional references tothe statutes of Richard 11.13 Moreover, some colonies attempted toincorporate the statutes ofRichard II into local legislation. 14 Colonialcommon law courts likewise possessed authority to issue writs of prohibition in appropriate cases and frequently did SO.15Nevertheless, it is equally clear that the vice-admiralty courtssometimes decided cases which, had they been brought in admiraltycourts in England, would have drawn writs of prohibition. 16 This latitude undoubtedly led to the blurring of jurisdictional lines between

colonial common law and vice-admiralty courts. This probably represents the beginnings of a judicial tendency to ignore niceties of technical problems in jurisdictional matters in the interest of applying11. "In point of fact the vice admiralty court of Massachusetts, before the Revolution, exercised a jurisdiction far more extensive, than that of the admiralty in England."DeLovio v. Boit, 7 F. Cas. 418, 442 n.46 (C.C.D. Mass. 1815) (No. 3,776) (Story, J.). C.

HOUGH, in his Introduction to REPORTS OF CASES IN THE VICE ADMIRALTY OF THEPROVINCE OF NEW YORK AND IN THE COURT OF ADMIRALTY OF THE STATE OF NEWYORK, 1715-1788, xviii (1925), found that New York practice substantiated the "celebratedremark of Justice Story." Campbell, dissenting in Jackson v. Magnolia, 61 U.S. (20 How.)296,336 (1857), disagreed. "The opinion of Justice Story, in the case of DeLovio v. Boil, iscelebrated for its research, and remarkable, in my opinion, for its boldness in assertingnovel conclusions, and the facility with which authentic historical evidence that contradicted them is disposed of." See Wiener, Notes on the Rhode Island Admiralty, 1727-1790,46 HARV. L. REV. 44 (1932); and Wroth, The Massachusetts Vice Admiralty Court and theFederal Admiralty Jurisdiction, 6 AM. JOUR. LEGAL HIS. 250 (1962).

12. 11 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 60-61 (1973).13. See, e.g., Kennedy v. 32 Barrels of Gunpowder (1754), cited in C. HOUGH, supranote 11, at 82; Castriot v. Nicoll (1759), cited in C. HOUGH, supra note 11, at 167. See alsoPotter v. Greyhound, R.I. Adm. Pap. V, 83, 90-93 (1747), cited in RECORDS OF THE VICE

ADMIRALTY COURT OF RHODE ISLAND, 1716-1752, at 413 (D. Towle, ed. 1936).14. See, e.g., "An Act to declare the Extension of Several Acts of Parliament madesince the Establishment of a Legislature in this Colony: and not declared in said Act to

extend to the Plantations," enacted by the colony of New York in 1767 in E. BROWN,BRITISH STATUTES IN AMERICAN LAW, 1776-1836, at 357 (1974). Such efforts by colonialassemblies to incorporate English statutory law wholesale into colonial law were generallyunsuccessful. Legislating for the colonies was theoretically the prerogative of the monarch.Consequently much colonial legislation was disallowed by orders in council. See id. at 17.Thus the limitation on the jurisdiction of the vice-admiralty courts was imposed derivatively from those imposed on the parent High Court of Admiralty and not by virtue ofcolonial enactments.15. See Wiener, supra note 11; Wroth, supra note 11.16. See discussion in Wroth, supra note 11.

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161986] DEVELOPMENT OF ADMIRALTYsubstantive law.17

In addition to this traditional limited jurisdiction over maritimematters, the vice-admiralty courts possessed long-standing statutoryauthority to decide cases brought for violation of navigation, revenue,and trade laws. IS This was a significant deviation from English practice where such cases were heard at common law in the Court ofExchequer.

By vesting the colonial vice-admiralty courts with this jurisdiction, Parliament sought to preserve revenue from the notorious unwillingness of colonial juries to return verdicts unfavorable to theirneighbors.The colonists reacted vehemently to this practice when, in 1764,Parliament began passing revenue acts designed to reduce the enormous national debt which England had acquired during the Frenchand Indian War.19 The common law right to a jury trial acquiredenormous significance. Colonial assemblies sent to England grie:vances bitterly remonstrating to the crown for extending admiralty jurisdiction beyond its "ancient limits."20 The number of traditionalmaritime cases brought in the vice-admiralty courts diminished gradually until the outbreak of hostilities in 1775, evidence of the low esteeminto which the vice-admiralty courts had fallen. 21At the urging of the Continental Congress, the admiralty courtswhich the states created to replace the defunct vice-admiralty courtstypically had juries, either mandatorially or at the election of either

party. They were principally for the trying of prize cases, althoughmany states provided instance22 jurisdiction as well. 23 During theConfederation, appeals from state admiralty court adjudications in17. An analogous process was under way in common law as the strict rules of pleading began to yield to substantive categories in the late eighteenth century. See W. NELSON,

AMERICANIZATION OF THE COMMON LAW, THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830, at 69-88 (1975).

18. The first was the Navigation Act of 1696, 7 & 8 Will. 3, ch. 22.19. The first was the American Act of 1764, 4 Geo. 3, ch. 15. The relationshipbetween the colonies and the vice-admiralty courts is analyzed in C. UBBELOHDE, THE

VICE-ADMIRALTY COURTS AND THE AMERICAN REVOLUTION (1960).20. C. UBBELOHDE, supra note 19, at 142-47. See also Jackson v. Magnolia, 61 U.S.(20 How.) 296, 330-31 (1857) (Campbell, J., dissenting). Compare Wayne's use of "ancientlimits" in Waring v. Clarke, 46 U.S. (5 How.) 441, 456-57 (1847).21. Wroth, supra note 11, at 361.22. In wanime, admiralty judges were specially commissioned to try cases having to

do with captures of vessels and cargo belonging to belligerents. The process involved wasstrongly analogous to ordinary in rem process in that parties with interests were invited toappear to assert their rights, adjudication followed, and then the vessel was condemned andsold at public auction, the proceeds being divided among interested parties, including the

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162 WESTERN NEW ENGLAND LAW REVIEW [Vol. 8:157prize matters were to the Court of Appeals, which was part of thenational government. The state appellate courts heard appeals fromthe instance side of the state admiralty courtS.24

Beyond doubt, the statutes of Richard II were in force throughout the states. New York, for example, enacted a version of the second statute.25 Virginia imported English statutes in effect in Englandbefore 1607.26 Other state admiralty courts relied on both the statutesof Richard II and English case law emanating from the King'sBench.27

Far from strictly applying the relevant law, some state admiraltycourts displayed a willingness to assert jurisdiction in doubtful cases,[n]ot from a desire of extending admiralty cognizance, but for thisimportant consideration, that if the decision in favour of the jurisdiction should be erroneous, the doors of the common law are openfor redress, and a prohibition may be obtained; but there is no remedy for the erroneous exclusion of parties who apply for the process,..C +1...":'00 , . . , . . 1 ~ ; ...n 1.... , ...... .a hQ. .....t o I : ~ f i t ",f t l , ~ 1 ~ U 1 c ! hu ul1,;{'n it anvprnpd l 'InnVJ . L.11\,.. aUJ.J.J.J..l.Q.J."J, ".1.1"" V,",.lJ.""'.l... II....,. "........ ........ ,.., .....J "" .....a.................." ....... b ...... _ ......... - , _ ~ ~ _ the summary justice it affords. 28

Thus, the ability of the state admiralty courts to provide a remedycaptors and the Crown. This was essentially prize jurisdiction. 3 BOUVIER'S LAW DIC TIONARY 2723-26 (8th ed. 1914).

Instance jurisdiction was the remainder of admiralty jurisdiction and reflected its civilside, including commercial matters. I t was principally the instance jurisdiction of the admiralty courts that incurred the wrath of the common law courts. In the days when admiralty jurisdiction was at its nadir and its instance jurisdiction limited for most practicalpurposes to in rem proceedings, the distinction between the prize and instance jurisdictionsof the admiralty courts was purely formal. 2 BOUVIER'S LAW DICTIONARY 1604 (8th ed.1914).

23. See J.C. Bancroft Davis, Federal Courts Prior to the Adoption o/the Constitution,131 U.S. app. at xix-xxii (1888).24. Ratified on March 1, 1781, the Articles of Confederation, in Article IX, gaveCongress the power to establish rules for the hearing of cases of capture and prize. The

Court of Appeals itself was created by resolution on January 15, 1780. Id. at xxv-xxviii.With the conclusion of hostilities, the need for an appeals court disappeared and the commissions of the three judges comprising the court were "vacated and annulled." Id. atxxviii.25. Putnam, How the Federal Courts Were Given Admiralty Jurisdiction, 10 COR NELL L.Q. 460,463 n. 9 (1925).26. 1 BENEDICT ON ADMIRALTY 88, at 6-15 (7th ed. 1985).27. See, e.g., Montgomery v. Henry, 1 Dall. 49,50 (Pa. 1780); Talbot v. Three Brigs,1 Dall. 95, 98 (Pa. 1784); Clinton v. Hannah,S F. Cas. 1056 (Pa. Adm. Ct. 1781) (No.2,898); Shrewsbury v. Two Friends, 22 F. Cas. 42 (S.C. Adm. Ct. 1786) (No. 12,819).28. Dean v. Angus, 7 F. Cas. 294, 297 (Pa. Adm. Ct. 1785) (No. 3,702). In Montgomery v. Henry, 1 Dall. 49, 50 (Pa. 1780), the court likewise announced its intention to"endeavour to enlarge its jurisdiction, rather than a place should remain subject to nocontroul. "

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1986] DEVELOPMENT OF ADMIRALTY 163 received a consideration at least equal to the question whether thecourt properly had jurisdiction over the case. From the complaints ofdisappointed plaintiffs who later encountered admiralty judges favoring a strict interpretation of the statutes of Richard II, it is apparentthat the state admiralty courts often upheld jurisdiction simply because no one had challenged it.29 Whatever hostility the colonial viceadmiralty courts engendered must have dissipated gradually duringthe years of the Confederation.

The salient weakness of the appellate structure as to prize caseswas the dependence of the national Court of Appeals on state courts toenforce reversals of state court decisions. Frequently state courts ignored such reversals. In United States v. Peters,30 a case which eventually reached the Supreme Court, the admiralty court of Pennsylvaniarefused to enforce the decree of the Court of Appeals because juryfindings were nonreviewable under Pennsylvania law. 3 ) The efforts ofthe appellants in the Peters proceeding to obtain enforcement generated a lengthy period of considerable tension between Pennsylvaniaand the federal government. 32III. ADMIRALTY JURISDICTION IN THE CONSTITUTION AN D THE

JUDICIARY ACT OF 1789The Court of Appeals was the only national judicial power permitted under the Articles of Confederation. This national admiraltypower was carried over into and expanded in the Constitution, princi

pally because the framers thought that the federal government had anessential interest in handling adjudications where the rights of foreigners were likely to be involved.33 Also, it had become clear during theConfederation that allowing state courts to check the exercise of federal judicial power interfered with. strong central government. The29. Shrewsbury v. Two Friends, 22 F. Cas. 42, 45 (S.c. Adm. Ct. 1786) (No.12,819). See also Clinton v. Hannah, 5 F. Cas. 1056, 1057 (Pa. Adm. Ct. 1781) (No.2,898). "[T]he practice of former times doth not justify the admiralty's taking cognizance

of their suits." Id.30. 9 U.S. (5 Cranch) 206 (1809).31. Admiralty appeals were traditionally de novo. See Yeaton v. United States, 9U.S. (5 Cranch) 363 (1809).32. At one point Governor McKean of Pennsylvania called out the state militia toprevent service of federal process. The full account appears in Davis, supra note 23, atxxix-xxxv. See also Doane's Administrators v. Penhallow, 1 Dall. 218 (Pa. 1787) (Common Pleas); Penhallow v. Doane's Administrators, 3 U.S. (3 Dall.) 84 (1795).33. Chief Justice John Jay explained the reason for the constitutional grant inChisholm v. Georgia, 2 U.S. (2 Dall.) 419, 475 (1793): "[B]ecause, the seas are the jointproperty of nations, whose right and privileges relative thereto, are regulated by the law ofnations and treaties, such cases necessarily belong to national jurisdiction."

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164 WESTERN NEW ENGLAND LAW REVIEW [Vol. 8:157framers therefore vested the federal government with jurisdiction overall cases of admiralty and maritime jurisdiction so as to remove anypossible impediments to the exercise of federal power to provide finaland decisive determination in admiralty cases. Owing to the moribund state of instance jurisdiction, the framers probably did not foresee that purely domestic cases would bring the federal jUdiciary intodirect conflict with the states' traditional authority to hear most maritime cases in common law courts.

Modern research has not supported Justice Wayne's dictum that"the words 'all cases of admiralty and maritime jurisdiction,' as theynow are in the constitution, were in the first plan of government submitted to the convention."34 Of the three plans submitted in 1787,denominated the Virginia Plan, the Pinckney Plan, and the NewJersey Plan, the only references to any aspects of admiralty jurisdiction were prize, piracies and felonies on the high seas, federal revenue,and cases in which foreigners might be involved.35 The only authenticmanuscript evidence containing a reference to admiralty jurisdictionappears among the papers of George Mason. His papers contain aproposed draft of the Constitution with the interlineation "& in Casesof Admiralty Jurisdn," probably inserted by John Rutledge, a memberof the Committee of Detail and successor to John Jay as Chief Justiceof the Supreme Court. 36

Documentary evidence supports the theory that the implicationsof instance jurisdiction were not fully worked out at either the convention or at the state ratifying conventions. Alexander Hamilton in theFederalist Papers cursorily dismissed the topic:

The most bigoted idolizers of state authority have not thus farshown a disposition to deny the national judiciary cognizance ofmaritime causes. These so generally depend on the law of nations,and so commonly affect the rights of foreigners, that they fall withinthe considerations relative to the public peace.37At the Virginia ratifying convention Governor Randolph endorsed admiralty jurisdiction as a fitting adjunct of national government:

As our national tranquillity, reputation, and intercourse with foreign nations may be affected by admiralty decisions, as they oughttherefore to be uniform, and as there can be no uniformity if there34. Waring v. Clarke, 46 U.S. (5 How.) 441, 457 (1847).35. Putnam, supra note 25, at 466.36. Id. at 468.37: 1 CONGRESS AND TH E COURTS: A LEGISLATIVE HISTORY, 1787-1977, at 108(Reams and Haworth, eds. 1978).

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165986] DEVELOPMENT OF ADMIRALTYbe thirteen distinct independent jurisdictions, the jurisdiction oughtto be in the Federal judiciary.38

Nowhere does it appear that a grant of admiralty jurisdiction to thefederal government was founded on anything other than considera tions of international comity.39

The judiciary Act of 178940 does not shed much light on earlyattitudes towards admiralty jurisdiction. The Act created the districtcourts41 and vested them with exclusive cognizance of allcivil causes of admiralty and maritime jurisdiction including allseizures under laws of impost, navigation or trade of the UnitedStates, where the seizures are made, on waters which are navigablefrom the sea by vessels of ten or more tons burthen, within theirrespective districts as well as upon the high seas; saving to suitors,in all cases, the right of a common law remedy, where the commonlaw is competent to give it; ...42

Jury trial was available for all issues of fact "in all causes except civilcauses of admiralty and marit ime jurisdiction."43 The Supreme Courtwas given authority to issue writs of prohibition to the district courts"when proceeding as courts of admiralty and maritime jurisdiction."44

The Act accorded well with a traditional understanding of admi ralty jurisdiction. The provision reserving jurisdiction in the commonlaw courts when they were competent to provide a remedy, commonlyknown as the Saving to Suitors Clause, suggested that state courts sit ting at common law could oust federal admiralty jurisdiction in manycases. The authority to issue writs of prohibition seemed congruent

38. Id. at 91.39. Although not specifically aimed at curbing the instance jurisdiction of the federalcourts, Maryland proposed an amendment which would have made jury trials available forall trespasses occurring within the body of a county. The amendment also would havegiven the state courts concurrent jurisdiction in all such cases. Also, appeals were to belimited to matters of law. Id. at 57.Aside from preserving jury trial, "the boasted birthright of Englishmen," the ratifyingconvention hoped to eliminate the necessity for parallel court systems where the state wascompetent to provide adequate adjudication. This would reduce the confusion and expensewhich would follow from "double courts and double officers." The convention also foundit was necessary to prevent the expansion of federal jurisdiction. Otherwise, federal juris diction might "swallow up the state jurisdictions, and consequently sap those rules of de scent and regulations of personal property, by which men hold their estates." Id.40. 1 Stat. 73, ch. 20.41. Id. at 3.42. Id. at 9.43. Id.44. Id. at 13. In United States v. Peters, 3 U.S. (3 Dall.) 121 (1795), the SupremeCourt issued a writ of prohibition to district court judge Peters, enjoining him from hearinga prize case in violation of a treaty with France.

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166 WESTERN NEW ENGLAND LAW REVIEW [Vol. 8:157with contemporaneous English practice. The phraseology "admiraltyand maritime jurisdiction" merely tracked the constitutional languagewhich had received a construction applying to international relations.

I t was not perfectly clear, however, that traditional jurisdictionalrules applied. Giving federal courts sitting in admiralty jurisdictionover revenue matters was reminiscent of the English colonial schemewhich had so enraged the colonists. The grant of jurisdiction overnavigable waters in the district courts' individual districts did not accord with the traditional ban on jurisdiction within the body of acounty. The power to issue writs of prohibition was vested in theSupreme Court, which was also the court of appeal, and not in a statecommon law court. I f the federal judiciary began to favor an expanded admiralty jurisdiction, the implications were obvious. Statecourts were without judicial means to restrict the federal jUdiciary.

IV. ADMIRALTY JURISPRUDENCE OF TH E EARLY DISTRICT COURTS

Most early district court judges entertained little or no doubt regarding the character of their admiralty jurisdiction. They consideredthemselves bound by English precedent. I t was early agreed that statutes in effect in England before the emigration of our ancestors werelikewise in effect in the United States to the extent that local conditions permitted.45 Moreover, many of the early federal judges hadheld positions in the court systems before the Revolution and duringthe Confederation and were familiar with the traditional jurisdictionalrules.46 Finally, they had no legal material which suggested that matters should be otherwise.

Until 1801 when Hay and Marriott's Reports, covering proceedings in the English High Court of Admiralty from 1776 to 1779, werepublished, there were no widely available English or American admiralty reports. The only treatise on admiralty jurisdiction and generalmaritime law used in the colonies was Francis Clerke's Praxis CuriaeAdmiralitatis Angleliae which had been published in England in 1677from notes made the preceding century. During the seventeenth century jurisdictional struggles between the common law and the admi

45. See E. BROWN, supra note 14, at 15-16. See also Morris's Lessee v. Vanderen, 1Dan. 64, 67 (Pa. 1782).46. For example, Richard Peters, district court judge for Pennsylvania, had served asregister for the Philadelphia vice-admiralty court from 1771 to 1776. William Drayton,district court judge for South Carolina, was admiralty judge of the state during the Confederation. Francis Hopkinson, also district court judge for Pennsylvania, was admiraltyjudge for Pennsylvania during the Confederation. See Wroth, supra note 11, at 365-66.

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19861 DEVELOPMENT OF ADMIRALTY 167ralty courts there emerged two more or less polemical worksdefending admiralty jurisdiction. They were John Godolphin's A Viewof the Admiral Jurisdiction, published in 1661, and Richard Zouch'sThe Jurisdiction of the Admiralty of England Asserted, published in1663. Neither appears to have been used in the colonies.47

Not surprisingly, works which viewed admiralty according to thelights of the common law were widely available. Luminaries such asSir William Blackstone and Sir Matthew Hale had included admiraltyjurisdiction in their treatises on English law. Charles Molloy's DeJure Maritimo, published in 1676 and representative of the commonlaw viewpoint, was available in the colonies during the eighteenth century.48 Moreover, the enormous body of reported common law cases,including Coke's Fourth Institute,49 was available.Principal reliance on what were essentially English common lawviews of admiralty jurisdiction shaded the American courts' under

standing of both jurisdiction and substantive law. In theory, generalmaritime law as practiced in the English admiralty courts was a comprehensive and coherent system. The effect of the common law courts'pattern of issuing prohibitions based on locality was to eclipse parts ofthis system, leaving the parts which remained visible to be taken assubstantive law and, incidentally, matter over which admiralty hadundoubted jurisdiction.50 The result was that jurisdictional and substantive issues became mixed.American judges were not well-versed in civil law generally ormaritime law. They tended to consider that common law embracedmaritime law:[T]he change in the form of our government has not abrogated allthe laws, customs and principles of jurisprudence, we inherited fromour ancestors, and possessed at the period of our becoming an independent nation. The people of these states, both individually andcollectively, have the common law, in all cases, consistent with thechange of our government, and the principles on which it isfounded. They possess, in like manner, the maritime law, which ispart of the common law, existing at the same period; and this ispeculiarly within the cognizance of courts, invested with maritime

47. C. ANDREWS, Introduction to RECORDS OF THE VICE-ADMIRALTY COURTS OFRHODE ISLAND, supra note 13, at 3 n.2. But see Talbot v. Three Brigs, I Dall. 95, 98-99(Pa. 1784).48. C. HOUGH, supra note II , at xix.49. Published posthumously in 1644.

50. See generally, The Underwriter, 119 F. 713, 728-42 (D. Mass. 1902), whereJudge Lowell in a very scholarly opinion discusses this phenomenon in the setting of maritime liens.

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168 WESTERN NEW ENGLAND LAW REVIEW [Vol. 8:157jurisdiction; although it is referred to, in all our courts on maritimequestions. 51

Of course, no English common law court ever applied the maritimelaw as the rule of decision. Thus, in Boreal v. Golden Rose,52 JudgeBee was hopelessly wide of the mark when he began his discussion of amaster's right to hypothecate:The question before me is of considerable importance to commercein general; it must be decided, therefore, on general principles, andaccording to the course of the civil law. All the cases quoted uponthis occasion were determined in courts of common law, but uponthe principles of the civil law.53

He went on to cite a dictum of Lord Mansfield, apparently under theassumption that it was a statement of civillaw. 54 In fact, the dictummerely summed up both common law and maritime law remediesavailable to a materialman without mentioning an essential distinctionbetween domestic and foreign bottomry bonds.

Alongside this largely unconscious tendency to reach issues ofsubstantive law before jurisdiction, a minority of district court judgesconsidered admiralty jurisdiction to be based solely on subject matterwithout regard for locality. The most outspoken was JudgeWinchester in Maryland. In Stevens v. Sandwich 55 which concerned ashipwright's right to proceed in rem against a domestic vessel,Winchester upheld jurisdiction. He boldly asserted that "the statutes13 & 15 Rich. II. have received in England a construction which mustat all times prohibit their extension to this country. The reports ofdecisions in the courts of that country are perfectly irreconcilable."56Having concluded that jurisdiction attached because of the maritimesubject matter of the contract, he applied maritime law and held that a

51. Thompson v. Catharina, 23 F. Cas. 1028, 1030-31 (D. Pa. 1795) (No. 13,949).52. 3 F. Cas. 901 (D. S.C. 1798) (No. 1,658).53. Id.54. The dictum was from Rich v. Coe, 98 Eng. Rep. 1281, 1283 (K.B. 1777): "Who ever supplies a ship with necessaries, has a treble security. 1. The person of the master.

2. The specific ship. 3. The personal security of the owners, whether they know of thesupply or not." See similar use of the same dictum in North v. Eagle, 18 F. Cas. 327, 328(D. S.C. 1796) (No, 10,309); Shrewsbury v. Two Friends, 22 F. Cas. 42, 44 (S.c. Adm. Ct.1786) (No. 12,819).55. 23 F. Cas. 29 (D. Md. 1801) (No. 13,409).56. Id. at 30. Other courts did not necessarily have Winchester's confidence. In The

Grand Turk, 10 F. Cas. 956, 957-58 (C.C.S.D. N.Y. 1817) (No. 5,683), the court waswilling to disregard the English rule prohibiting a master's suit in rem for wages, if theorigin of the rule were attributable to the common law courts' overreaching, but queriedwhether any change might better be made by the legislature.

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169986] DEVELOPMENT OF ADMIRALTYmaritime lien had arisen implicitly from the contract to supply. 57

On the whole, it is clear that even by the first decade of the nineteenth century American judges were both consciously and unconsciously making determinations based on subject matter and confusingsubstantive and jurisdictional law, without applying traditional criteria regarding locality.58

V. EARLY SUPREME COURT ApPROACH TO EXPANDINGADMIRALTY JURISDICTION

The Supreme Court's first brush with the question of expandingjurisdiction occurred in United States v. La Vengeance,59 which wasdecided in 1796. This case involved a seizure of a vessel charged withviolating a statute prohibiting trade with Santo Domingo. The UnitedStates appealed from the circuit court's reversal of a forfeiture. Attorney General Charles Lee argued that the offense was criminal and sonot cognizable on the instance side of admiralty. Lee supported hisargument by pointing to English practice which was to hear such casesat common law in the Court of Exchequer. 60 In a brief per curiamopinion, the Court upheld admiralty jurisdiction and held that the exportation of arms was a water transaction; that the cause was civil in

57. Id. at 31. Winchester's opinion is all the more remarkable because he used continental, rather than English, maritime law to provide the substantive rule. See also theanalyses in Wilmer v. Smilax, 30 F. Cas. 84 (D. Md. 1804) (No. 17,777) and The Mary, 16F. Cas. 938 (C.C. D. Ct. 1824) (No. 9,187). The prevailing view was that "the admiraltylaw of Great Britain is the admiralty law here." Woodruff v. Levi Dearbome, 30 F. Cas.525,527 (C.C.D. Ga. 1811) (No. 17,988).58. Towards the end of the eighteenth century, the King's Bench itself appeared tobe shifting towards a more liberal view of admiralty jurisdiction. In Menetone v. Gibbons,100 Eng. Rep. 568, 568-69 (K.B. 1789), Lord Kenyon said, "Then if the Admiralty hasjurisdiction over the subject matter, to say that it is necessary for the parties to go upon theseas to execute the instrument, borders upon absurdity." Justice Buller concurred in theidea that admiralty jurisdiction depended upon subject matter. Id. at 569. In Smart v.Wolff, 100 Eng. Rep. 600, 613 (K.B. 1789), Buller suggested a cautious reading of LordCoke, who "seems to have entertained not only a jealousy of, but an enmity against, thatjurisdiction. "59. 3 U.S. (3 Dall.) 297. The first admiralty appeal to the Supreme Court was Glassv. Betsey, I U.S. (3 Dall.) 6, 15 (1794), in which the Court held that the district courtspossessed both prize and instance jurisdiction. This resolved the confusion generated byLord Mansfield's opinion in Lindo v. Rodney, an otherwise unreported decision appendedto Le Caux v. Eden, 99 Eng. Rep. 375, 385-92 (K.B. 1781), which had overemphasized thedistinction between the two sides of admiralty jurisdiction. Resolution of this issue wasimportant because the authority of the district courts to resolve differences arising fromprize cases originally adjudicated during the Confederation in the state admiralty courtswas in doubt. See discussion in Jennings v. Carson, 13 F. Cas. 540 (D. Pa. 1792) (No.7,281).

60. La Vengeance, 3 U.S. at 299-300.

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170 WESTERN NEW ENGLAND LAW REVIEW [Vol. 8:157nature; and that Sandy Hook, the place of seizure, was obviously onthe water. In the United States v. Sally,61 the court summarily affirmed jurisdiction on similar facts.

The implications of the Court's decision in La Vengeance, brief asit was, were far-reaching. The seizure had occurred in a locale which,under the common law, was within the body of a county. Also, theCourt peremptorily rejected an argument premised upon English practice at the time of the adoption of the Constitution. The Court allowed jurisdiction under the Judiciary Act of 1789. This Act hadplaced prosecutions for violations of impost, trade, and navigation inadmiralty. Did this mean that Congress could place various subjectmatters in admiralty without regard for English jurisprudence?

In 1808 Lee appeared for the owner to argue the case of UnitedStates v. Betsey and Charlotte,62 another forfeiture for violation of thetrade laws with Santo Domingo. The vessel had been seized withinthe port of Alexandria, definitely within the body of a county. ChiefJustice Marshall considered the jurisdictional issue settled by La Ven geance. Lee explained that he hoped "to show that this case is distinguishable," pointing out that the earlier case was "not so fully arguedas it might have been."63 Justice Chase uncharitably recalled that theargument in La Vengeance "was no great thing,"64 but Lee was allowed to proceed.Lee then advanced a barrage of arguments, most of them restingon the premise that admiralty jurisdiction in the United States de

pended on English practice at the time of the adoption of the Constitution. "The question, then, is, whether, according to the understandingof the people of this country at that time, a seizure of a vessel, withinthe body of a county, for breach of a municipal law of trade, was acase of admiralty cognizance."65 Because such cases were not amongthose of admiralty cognizance "congress could not make them such,nor by forcing them into that class, deprive the citizen of his right totrial by jury."66 Congressional intent was evidenced in the Saving toSuitors Clause which entitled the suitor to a common law remedy.67Lee reminded the Court that vice-admiralty jurisdiction over matters

61. 6 U.S. (2 Cranch) 406 (1805).62. 8 U.S. (4 Cranch) 443.63. Id. at 446.64. Id.65. Id. at 447.66. Id. at 449.67. Id.

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171986] DEVELOPMENT OF ADMIRALTY

of revenue had been one of the principal grievances of the colonists.68As an afterthought, Lee alluded to the fifth and seventh amendmentsto show that an accused was entitled to a jury trial and could not bedeprived property without due process of law.69Marshall, writing for the Court, avoided the implication of Lee's

premise that admiralty jurisdiction was fixed at the adoption of theConstitution by arguing that it was merely the place of seizure, notcommission of the offense, which determined jurisdiction. 70 In Marshall's view, the Judiciary Act of 1789 simply distinguished betweenseizures on land and those at sea, obviously putting the latter in admiralty.71 The argument based on the fifth and seventh amendments apparently took the Court by surprise, but it too was dismissed: "Theonly doubt which could arise would be upon the clause of the constitution respecting the trial by jury. But the case of the Vengeance settlesthat point."72For some time after Betsey and Charlotte the Court was relativelysilent on the question of admiralty jurisdiction. Although the decisionin that case had broad implications, the court generally construed it toapply solely to violations of revenue and trade laws. Thus, Betsy andCharlotte did not affect the course of instance jurisdiction in admiralty. In fact, in The Thomas Jejferson,73 decided in 1825, JusticeStory dismissed an argument for extending admiralty jurisdiction onthe basis of this exception by distinguishing it as a "statuteable provision." Not until the 1840's did the Supreme Court again take the leadin defining admiralty jurisdiction.

VI. JUSTICE JOSEPH STORY AND DELoVIO V. BOlTThe Supreme Court's treatment of the forfeiture cases suggestedthe possibility of expanding admiralty jurisdiction, but like the viceadmiralty courts' jurisdiction over trade and revenue matters, the forfeiture cases seemed anomalous. In the absence of controlling decisions from the Supreme Court, the district and circuit courts were able

68. Id. at 448. This invocation of the colonists' sentiments did not carry muchweight. During oral argument Justice Chase bluntly pointed out: "The reason of the legislature for putting seizures of this kind on the admiralty side of the court was the greatdanger to the revenue if such cases should be left to the caprice of juries." Id. at 446. This,of course, was the same reason which had prompted Parliament to vest the vice-admiraltycourts with the same jurisdiction.

69. Id. at 451.70. Id. at 452.71. Id.72. Id.73. 23 U.S. (10 Wheat.) 428, 429.

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172 WESTERN NEW ENGLAND LAW REVIEW [Vol. 8:157to develop admiralty jurisdiction incrementally, sometimes simply because of the lack of guidance in close cases, but also as part of a general tendency, often unperceived, to expand jurisdiction.

By far the most enthusiastic and most powerful proponent of anexpansive interpretation of admiralty jurisdiction was Justice JosephStory, who joined the Court in 1812.74 Story had practiced admiraltylaw in Marblehead and Salem, Massachusetts, before joining the Courtand had acquired an extensive education in the field. 75 Like Chief Justice John Marshall, Story wanted the federal judiciary to provide anattractive forum for litigators with mercantile interests so that a uniform commercial law could emerge under the supervision of federaljudges.76 Accordingly, Story directed his attention to the instance sideof admiralty jurisdiction.

Story sought to develop instance jurisdiction in two ways. First,he desired to break the hold of English precedent on admiralty jurisdiction by subordinating the English emphasis on locality to subjectmatter jurisdiction. Locality was then simply one criterion for determining whether the subject matter of a given action was sufficientlymaritime in complexion to bring it within admiralty jurisdiction. Second, even thougl,. locality was displaced as the determinative criterion,it was still necessary to fix the federal admiralty jurisdiction withinworkable territorial limits which would give the federal courts enoughcases to enable them to develop a body of substantive law. Sitting onthe First Circuit in Boston, Story was able, with the help of two ex traordinarily competent district court judges, Ashur Ware77 and John

74. Two excellent biographies are G. DUNNE, JUSTICE JOSEPH STORY AND THERISE OF THE SUPREME COURT (1970) and R. NEWMYER, SUPREME COURT JUSTICE JoSEPH STORY, STATESMAN OF THE OLD REPUBLIC (1985).

75. Story's extensive knowledge of and facility with substantive maritime law arewell illustrated in The Emulous, 8 F. Cas. 697 (C.C. D. Mass. 1813) (No. 4,479), a prizecase decided soon after Story joined the Court. Later , in The Nestor, 18 F. Cas. 9 (C.C.D.Me. 1831) (No. 10,126), Story perfected the concept of maritime lien which had beenslowly evolving since the days of Clerke's Praxis.76. See R. NEWMYER, supra note 74, at 281-89.77. United States district court judge for the district of Maine from 1822 to 1866,Ware was early recognized as an authority on admiralty law. He wrote the articles onadmiralty in Bouvier's Law Dictionary. Ware's expansive views of admiralty jurisdictionare well evidenced in the famous case of Steele v. Thacher, 22 F. Cas. 1204 (D. Me. 1825)(No. 13,348), in which he sustained jurisdiction over a suit brought by a father against themaster of a ship on which the plaintiff's minor son had signed and travelled to the WestIndies. "If it be said that [this tort] had its inception on land, and within the body of acounty, the answer has been already given, that the English cases on this point are not held

to be law in this country; but where the substance of the tort is committed on the high seas,when it there has its consummation, if it be all one continued act, the jurisdiction of theadmiralty will attach to the whole matter, though part of it may have taken place on land

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173986] DEVELOPMENT OF ADMIRALTYDavis,78 to accomplish much of what he was not able to do on theSupreme Court.

Taking advantage of the wave of nationalism which swept thecountry at the conclusion of the War of 1812, Story began buildingupon themes of admiralty jurisdiction.79 In 1815 he decided DeLovio v.Boit,80 a case involving a marine insurance policy. DeLovio is oftenconsidered the cornerstone of modern American admiraltyjurisdiction.81

DeLovio was really an essay on the history of admiralty jurisdiction in England. Story intended it to serve as precedent for putting allof maritime contract law within admiralty jurisdiction. The bulk ofthe opinion consisted of an extensive analysis of the cases upon whichCoke had relied in his Fourth Institute which was still regarded as thebible for common lawyers on the subject of admiralty jurisdiction. Inlawyerly fashion, Story distinguished and explained away Coke's conclusions. Story's thesis was that, before the encroachments of thecommon law, English admiralty had enjoyed extensive jurisdiction including all matters pertaining to the sea within the ebb and flow of thetide.82 He concluded that the lack of uniformity of decisions at English common law justified reappraisal in light of Americanexperience. 83

Turning to the constitutional language and its duplicate in theJUdiciary Act of 1789, Story concluded that "maritime" was intendedand within the body of a county." [d. at 1206-7. See also The Huntress, 12 F. Cas. 984,987-94 (D. Me. 1840) (No. 6,914). See the remarks of the Cumberland Bar on his retirement from the federal bench, 30 F. Cas. 1349.78. United States district court judge for the district of Massachusetts from 1801 to1841, Davis was likewise known for his expertise in admiralty law. See the remarks ofUnited States district attorney, Franklin Dexter, and the Suffolk Bar, 30 F. Cas. 1302.79. Story frequently used dicta to develop his views on admiralty jurisdiction. SeeMartin v. Hunte r's Lessee, 14 U.S. (1 Wheat.) 304, 335 (1816); Thomas v. Lane, 23 F. Cas.957,960 (C.C. D. Me. 1813) (No. 13,902); and Jenks v. Lewis, 13 F. Cas. 539 (C.C. D. Me.1825) (No. 7,279).

80. 7 F. Cas. 418 (No.3,776). Boston businessmen had taken a policy of insuranceon a Spanish ship engaged in the foreign slave trade. The insurer refused to pay for lossowing to capture. Davis agreed with the insurers that the district cour t sitting in admiraltydid not have jurisdiction over marine insurance policies, thereby assuring an appeal. Storyhad begun writing the 26,000 word opinion before he actually heard the case during October Term 1815. His opinion was immediately published in Gallison's Reports, 1815-16,where it occupied eighty doublecolumned pages and received prompt distribution. See R.NEWMYER, supra note 74, at 123.

81. "This great opinion ought to be thoroughly studied by those who aim at solidattainments in this department of the law." Footnote to reported decision in FederalCases, DeLovio, 7 F. Cas. at 418.82. Id. at 441.83. Id.

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174 WESTERN NEW ENGLAND LAW REVIEW [Vol. 8:157to amplify traditional admiralty jurisdiction so that it corresponded tothe "ancient and original jurisdiction, inherent in the admiralty ofEngland by virtue of its general organization."84

To bolster his argument, Story tried to show that the jurisdictionof the vice-admiralty courts was more extensive than contemporaryEnglish practice. He reached this conclusion by relying on theCrown's commissions to colonial governors making them vice-admirals. The governors were empowered to grant cognizance over

all causes civil and maritime, and in complaints, contracts, offensesor suspected offenses, crimes, pleas, debts, exchanges, accounts,charter parties, agreements, suits, trespasses . . . [extending]throughout all and every the ~ e a s h o r e s , public streams, ports, freshwaters, rivers, creeks and arms, as well of the sea....85

Returning to the matter at hand, Story concluded that a marine insurance policy was a maritime contract cognizable in admiralty.86Although a holding that an action on a marine insurance policywas cognizable in admiralty was revolutionary,87 Story's opinion reflected a conservative interpretation. The language of the vice-admirals' commissions purported to assert admiralty jurisdiction overinland waterways, but Story sought only to make admiralty jurisdiction coextensive with tidewater. Even before he had begun writingDeLovio, the steamboat Orleans had completed its historic run fromPittsburgh to New Orleans. That occurred in 1811, and traffic on thewestern rivers grew steadily throughout the decade. Story must havebeen aware of the significance of technological developments in transportation on waterways as westward migration increased. Yet, whilethere was some precedent for making admiralty jurisdiction coextensive with tidewater, there was no precedent for extending admiraltyjurisdiction to inland waterways. At most, the vice-admirals' commissions evidenced the claims of the prerogative courts, not the actualextent of jurisdiction.

Story was determined to place all maritime contracts in admiralty. Commerce was carried on through contractual arrangements.84. Id. at 442.85. Id. n.46.86. Id. at 444. In The Volunteer, 28 F. Cas. 1260, 1261 (C.C. D. Mass. 1834) (No.16,991), Story reflected on the years which had passed since he wrote DeLovio and statedhis firm conviction that neither "appeals to popular prejudices," "learned and liberal arguments," nor "severe and confident criticism" had managed to convince him that DeLoviowas wrongly decided.87. The Supreme Court did not so hold until the decision in New England Mut. Ins.Co. v. Dunham, 78 U.S. (11 Wall.) 1 (1870).

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175986] DEVELOPMENT OF ADMIRALTYThus, any emerging body of commercial law would turn on contracts.DeLovio was settled law in the First Circuit thereafter. Despite a hintin the opinion that Story would have liked to see it go to the SupremeCourt on appeal,88 neither it nor decisions following DeLovio were appealed. 89 The mercantile class in Boston gave DeLovio a lukewarmreception but continued to litigate maritime contracts in common lawcourtS.90

Story also wrote the opinion for The Thomas JejJerson,91 the firstcase in which the Supreme Court considered extending admiralty jurisdiction beyond the ebb and flow of the tide. This was an actionagainst a steamboat for seamen's wages for a trip from Shippingport,Kentucky, up the Missouri and back, an itinerary "several hundredsof miles above the ebb and flow of the tide. "92 The district court hadsustained admiralty jurisdiction and the plaintiff seamen appealedfrom the circuit court's dismissal for lack of jurisdiction.

The case had generated considerable controversy while it was atthe district court level, because the three owners were brothers ofRichard Johnson, United States Senator from Kentucky. Within twoweeks after the district court had sustained jurisdiction, Johnsonlaunched a witty and bitter attack on the federal jUdiciary and proposed a statute which would have limited admiralty jurisdiction to theebb and flow of the tide.93Moreover, the case came up on appeal in the midst of a heatedcontroversy between the Supreme Court and the state of Kentucky.The Supreme Court had, in Green v. Biddle,94 upheld an attack onKentucky'S occupying-claimant law. This law gave good faith occupants of land belonging to absentee owners the value of their improvements and relieved them of responsibility for debts and rents. Thedecision provoked considerable hostility because the statute was part

of a general scheme of ameliorative legislation intended to mitigate theeffects of title fights to land. Moreover, Kentucky was in the midst ofa serious fiscal crisis which the Court's decision in Osborn v. Bank ofthe United States 95 probably exacerbated.96

88. DeLovio, 7 F. Cas. at 444.89. In Gloucester Ins. Co. v. Younger, to F. Cas. 495, 498-99 (C.C.D. Mass. 1855)(No. 5,487), Justice Curtis expressed doubts as to the validity of the holding in DeLovio, butdeclined to overrule established precedent.90. See id. at 498. See also G. DUNNE, supra note 74, at 132.91. 23 U.S. (to Wheat.) 428 (1825).92. Id. at 429.93. See G. DUNNE, supra note 74, at 215-16, 238-39.94. 21 U.S. (8 Wheat.) 1 (1823).95. 22 U.S. (9 Wheat.) 138 (1824).

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176 WESTERN NE W ENGLAND LAW REVIEW [Vol. 8:157Against this background, Story held that admiralty jurisdictiondid not extend to seamen's wages under the circumstances presentedin The Thomas Jefferson, because the employment was not performedsubstantially on the sea or on tidewater. 97 Although it is possible toview the decision as an attempt to placate Kentucky, it is more likely

that Story was simply adhering to the position he had taken inDeLovio. I t is also likely that the Court considered The Thomas Jef ferson an inadequate vehicle for extending admiralty jurisdiction to thewestern rivers. Nothing about the case gave it a maritime complexion.I t was almost impossible to justify extending admiralty jurisdiction.Significantly, Story did not cite any authority for his views. This suggests that he considered the jurisdictional issue well-settled.

Story nevertheless left the Court and Congress an opening whichwas later to have far-reaching consequences through his agency:Whether, under the power to regulate commerce between theStates, Congress may not extend the remedy, by the summary process of the "A.dmira!ty, to the case of voyages on the western waters,it is unnecessary for us to consider. If the public inconvenience,from the want of a process of analogous nature, shall be extensivelyfelt, the attention of the Legislature will doubtless be drawn to thesubject.98

Here was a revival of the suggestion made sub silentio in La Vengeanceand its progeny that Congress possessed power to create and expandadmiralty jurisdiction beyond its traditional limits. The Court nonetheless seemed content to have stabilized a rule as to locality.In later cases the tidewater rule proved workable. In Orleans v.Phoebus 99 the Court held that there was no admiralty jurisdiction overa possessory suit brought by a part owner against a steamboat becausethe waters plied were, with the exception of its terminus in New Orleans, beyond the ebb and flow of the tide. In United States v.Coombs,loo the Court held that goods washed above the high watermark were not within admiralty jurisdiction for the purposes of a fed eral statute which made their theft a felony.

96. Decided the same term as The Thomas Jefferson were Wayman v. Southard, 23U.S. (10 Wheat.) 1 (1825) and Bank of the United States v. Halstead, 23 U.S. (10 Wheat.)51 (1825). Both were challenges to the constitutiona lity of Kentucky legislation. In both,the Court avoided the constitutional issues by holding that the federal process statute didnot incorporate the statutes in issue.

97. The Thomas Jefferson, 23 U.S. at 429.98. Id. at 430.99. 36 U.S. (11 Pet.) 175 (1837).100. 37 U.S. (12 Pet.) 72 (1838).

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177986] DEVELOPMENT OF ADMIRALTYVII. BEGINNING OF STATES' RIGHTS OBJECTIONS

The states' rights judiciary was becoming aware that the federalcourts' interpretations of admiralty jurisdiction were quietly expansive. In a sarcastic concurrence-which was really more of a dissent-Story's nemesis, Justice Johnson, announced in Ramsay v.Allegre 101 that he thought "it high time to check this silent and stealing progress of the Admiralty in acquiring jurisdiction to which it hasno pretensions." Johnson's target was a dictum which had appearedin Story's 1819 opinion in The General Smith, \0 2 which said that hadthat suit been brought in personam rather than in rem the Courtwould not have hesitated to sustain jurisdiction. The General Smith,like Ramsay v. Allegre, was a materialman's action for contract damages for ship repairs. Johnson, who had been sitting on the Courtwhen The General Smith was decided, had apparently not noticed thatit suggested jurisdiction based on subject matter and that it ignoredthe long-standing English rule barring materialmen's suits from admiralty jurisdiction, because such contracts were made within the bodyof a county.

The General Smith was an odd decision because it contained several strands of thought which had been present in the lower federalcourts' decisions for some time. Story asserted a general admiraltyjurisdiction over maritime contracts consistent with such decisions asStevens \0 3 and DeLovio. I0 4 But, having acknowledged general jurisdiction over the subject matter, Story inexplicably applied state law tosee whether there was a right to proceed in rem. \0 5 Whether Storyhad fallen victim to the prevalent confusion between substantive andjurisdictional law or was simply deferring to municipal law in the unsettled period before Swift v. Tyson \0 6 is impossible to say. Maryland

101. 25 U.S. (12 Wheat.) 611. 614 (1827). (Johnson. J., concurring). In Ramsay, amaterialman had received a negotiable promissory note payable in four months for hisservices. The note had not been paid. The issue on appeal was whether acceptance of thenote had extinguished the underlying debt, which was based on maritime consideration,and so constituted a waiver of admiralty jurisdiction. Id. at 612. Writing for the Court,Marshall dismissed the appeal because the record did not show that the note had beennegotiated or surrendered. Johnson, of course, was challenging the premise that were it notfor the note admiralty had jurisdiction.102. 17 U.S. (4 Wheat.) 438.103. See supra text accompanying notes 55-57.104. See supra text accompanying notes 81-89.105. The General Smith, 17 U.S. at 438.106. 41 U.S. (16 Pet.) I (1842). Section 34 of the Judiciary Act of 1789 had providedthat state law should provide the substantive rule of law for trial at common law so long asthere was no constitutional or federal statute in conflict on the point in issue. In Swift,Story held that "laws" as used in the Act did not incorporate the ever-changing judicial law

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178 WESTERN NEW ENGLAND LAW REVIEW [Vol. 8:157had not modified the common law position which limited materialmento in personam actions on contract once the vessel was no longer intheir possession.

Under municipal law there was no lien to enforce in court. Con sequently, although admiralty was the correct forum, the plaintiff hadsought the wrong remedy. Johnson had probably not noticed the implications of Story's line of reasoning because the result was the sameas it would have been under the traditional rules for materialmen'sactions for supplies and repairs in domestic ports.

In Ramsay, Johnson sought to rectify his oversight by preparingan historical analysis of the development and inhibition of admiraltyjurisdiction from the statutes of Richard II to the nineteenth century.He declared that "the test of admiralty jurisdiction" was "wherever aprohibition will issue, the jurisdiction has been taken away from theadmiralty, or it never possessed it."107 Thus, he argued that the inter pretation of the English common law was determinative of Americanadmiralty jurisdiction.

Johnson confined his discussion to tracing the historical develop ment of admiralty jurisdiction, without enlarging on the theme ofstates' rights which underlay his concern. Obviously, if the ability of acommon law court to take jurisdiction ousted admiralty, then the statecourts could control the bulk of maritime contract actions, just as theEnglish common law courts had before them. Johnson's historical testactually went further than fixing American admiralty jurisdiction byEnglish standards. His test suggested that developments in the com mon law could remove more matters from the admiralty jurisdictionof the federal courts, which were limited by the English practice.

Nevertheless, Johnson perceived a flaw in the American plan offederalism and was filled with alarm:I am fortifying a weak point in the wall of the constitution. Everyadvance of the Admiralty is a victory over the common law; a con quest gained upon the trial by jury. The principles upon whichalone this suit could have been maintained, are equally applicable toone half the commercial contracts between citizen and citizen.Once establish the rights here claimed, and it may bring back with itall the Admiralty usurpations of the fifteenth century. In Englandthere exists a controlling power, but here there is none. Congress

of the states, thereby enabling federal judges to follow their own logic as to the substantiverule of law in a given case. Although The General Smith was in admiralty and not atcommon law, it is possible that Story's application of Maryland's substantive law was influ enced by the rule suggested in the Act.107. Ramsay, 25 U.S. at 615.

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1986] DEVELOPMENT OF ADMIRALTY 179has, indeed, given a power to issue prohibitions to a District Court,when transcending the limits of the Admiralty jurisdiction. Butwho is to issue a prohibition to us, if we should ever be affected witha partiality for that jurisdiction?IOS

Johnson clearly understood the expansion of admiralty jurisdiction,especially over contracts, as a horrific instance of the encroachment ofcentral authority against which the states could not protect themselves. In violation of the Diversity Clause,109 citizens from the samestate could litigate in federal rather than state courts. That the rule ofdecision was from the municipal law did not appease him. So long asadmiralty could be held to a handful of traditionally recognized actions, the threat was minimal, but an incursion into the commercialtransactions of the states could cripple the states' economic and political power. Since the expansion of American admiralty jurisdictionoccurred through judicial interpolation of the constitutional grant,only a decorous judicial restraint could prevent a debacle.Story's application of municipal law in The General Smith openedthe door for state-created rights to be enforced in admiralty. In 1833,the Court held, in Peyroux v. Howard," that admiralty had jurisdiction in an in rem proceeding brought by a materialman when state lawgave him a lien on the vessel. Apparently since the action was in remand not in personam, and since it came from state law, Johnson didnot feel obliged to comment.

VIII. ABANDONMENT OF THE TIDEWATER RULENotwithstanding the states' righters' mounting alarm over thegradual introduction of subject matter jurisdiction, the tidewater limitation continued to reserve to the state courts a considerable proportion of commercial maritime adjudications. This was because the108. Id. at 640. Johnson was not always consistent in his argument for strict application of the English jurisdictional rules. Only two years earlier in Manro v. Almeida, 23U.S. (10 Wheat.) 473, 490 (1825), he upheld the use of admiralty attachment of the chattels

of an absconded defendant, while noting that although such attachments were no longerused in England, they were among the "peculiarities which have been incorporated into thejurisprudence of the United States." Significantly, he cited Clerke's Praxis as his authority.Id. at 491-92. Admiralty attachment as outlined by Clerke was intended to secure in personam jurisdiction. Johnson tried to explain away tha t aspect in Ramsay, 25 U.S. at 63031. In Woodruffv. Levi Dearborne, 30 F. Cas. 525, 527 (C.C.D. Ga. 1811) (No. 17,988)Johnson announced in dicta a willingness to depart from the English rule prohibiting domestic materialmen from obtaining liens against domestic vessels, if the owner, "thoughpresent, when work and materials are furnished, is transient and non-resident."

109. U.S. CONST. art . III, 2, cl.l.110. U.S. (7 Pet.) 324.

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180 WESTERN NEW ENGLAND LAW REVIEW [Vol. 8:157waters involved were not -within the ebb and flow of the tide. Duringthe 1840's, the Court as well as Congress began aggressively to expandthe district courts' admiralty jurisdiction. By the end of the 1850's,subject matter jurisdiction emerged paramount, and inland waterwayscarrying commerce between two or more states were included withinadmiralty jurisdiction.

In 1845, Congress passed the Great Lakes navigation act, 111which extended the jurisdiction of the district courts to the GreatLakes and the navigable waters connecting them. The Act was palpably a follow-up to Story's dictum in The Thomas Jefferson, and itseems likely that Story himself wrote it. 112The act was a curious congeries. Its wording conveyed the impression that it had been passed under the Commerce Clause. l1 3 Thedistrict courts were given "the same jurisdiction in matters of contractand tort . . . as is now possessed by the said courts in cases of . . .steamboats and other vessels employed in navigation and commerceupon the high seas; or tide waters, within the admiralty and maritimejurisdiction of the United States."114 Provisions for a jury trial at theelection of either party and for a concurrent remedy at the commonlaw "where it is competent to give it" 115 anticipated criticism.Although the full impact of the act was not apparent when it waspassed, it implicitly suggested that Congress could enlarge the admiralty jurisdiction of the district courts at will.In 1847, the Court considered for the first time whether there was

admiralty jurisdiction for action in tort arising within the ebb and flowofthe tide, but within the body ofa county. In Waring v. Clarke,116 acollision case arising on the Mississippi River, the court rejected thedefendant's argument that admiralty jurisdiction was limited to thosecases cognizable in English admiralty courts either at the time of theRevolution or at the adoption of the Constitution. Justice Wayne, fol lowing Story's reasoning in DeLovio, argued that the practice of thevice-admiralty courts was more extensive than that of the contemporaneous English courts.Starting with what he asserted to be historical fact, Wayne built

upon a series of rhetorical questions suggesting that the participants in111. 5 Stat. 726, ch. 20.112. See Jackson v. Magnolia, 61 U.S. (20 How.) 296, 342 (1857) (Campbell, J.,dissenting).113. U.S. CONST. art. I, 8, cl. 3.114. 5 Stat 726, ch. 20.115. Id.116. 46 U.S. (5 How.) 441 (1847).

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181986] DEVELOPMENT OF ADMIRALTYthe Revolution and the Constitutional Convention knew what the ancient jurisdiction of admiralty had been, as shown by the grievances tothe crown.1l7 From these inferences Wayne drew the further inference that these same individuals intended that the constitutional grantshould embody the ancient jurisdiction free from the arbitrary inhibitions of the common law. l lS Significantly, he objected to a reading ofEnglish jurisdictional law into the Constitution because it would interfere with Congress's right to legislate. 119

Also drawing upon the English experience, the defendant suggested that the Saving to Suitors Clause of the judiciary Act of 1789embodied the English rule of exclusive jurisdiction in the common lawcourts when the common law could provide a remedy.120 Wayne responded that the competency of the common law to provide a remedywas relevant only on the issue of choice of forum. The systems of lawwere co-equals, with overlapping jurisdiction. Therefore, the commonlaw courts had only concurrent jurisdiction. J2 lTurning to the specific issue at hand, Wayne relied on the term"sea" as admiralty had traditionally defined it, meaning tidewater.The exclusion of admiralty from jurisdiction over matters arisingwithin the body of a county was based on the statutes of Richard II,which "were never in force in any of the colonies."122 Accordingly,admiralty had jurisdiction over torts so long as they occurred withinthe ebb and flow of the tide, whether they occurred on the open sea oron inland waterways.

Viewed narrowly, Wayne's decision simply carried the tidewaterrule to its logical extreme. The Supreme Court had evidently found itto be a workable rule. But from the point of view of states' righters,the rationale of the opinion was devastating.Wayne had thrown off the restraining statutes of Richard II andthe English precedent founded on them. 123 He also apparently hadrejected the idea that admiralty jurisdiction had been fixed at all at the

117. Id. at 454.118. Id. at 460.119. Id. at 457.120. Id. at 452.121. Id. at 458-59.122. Id. at 461.123. To sustain jurisdiction Wayne was compelled to cast aside English precedent,even if it meant resting on the rather slender and largely unverifiable argument that colonial practice was broader than English practice. As late as 1832 the English High Court ofAdmiralty had held that, under the statutes of Richard II, it did not have jurisdiction overa collision occurring on a river within the ebb and flow of the tide, but within the body of acounty. The Public Opinion, 166 Eng. Rep. 289 (Adm. 1832).

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182 WESTERN NEW ENGLAND LAW REVIEW [Vol. 8:157time of the constitutional grant, except to the extent that the nebulous,undocumented practice of the vice-admiralty courts fixed it. Startling,too, was the suggestion that Congress had an open field to pass legislation affecting the extent of admiralty jurisdiction. Until that time thestates' righters had, like Johnson in Ramsay, considered the Englishinterpretation determinative. Now Wayne was apparently suggestingthat Congressional imagination was the sole limit to admiralty jurisdiction. Wayne had cut admiralty jurisdiction loose from its constitutional moorings without suggesting how it might be confined.

Wayne had already decided the same issue while on circuit inGeorgia. In Bulloch v. Lamar,124 two negro slaves in a canoe haddrowned when a steamboat ran them down in the Savannah Riverwithin the ebb and flow of the tide. Citing Peyroux for the propositionthat admiralty had jurisdiction coextensive with tidewater, Wayne declared that "it is not an open question."125 He went on" to say that hedid not mean

to assert that the grant of admiralty power . . . is limited to the ebband flow of the tide-that admiralty jurisdiction may not be maintained under the judicial act, as it is, above the flow of the tide, orthat congress may not legislate to give such jurisdiction upon navigable waters, beyond the ebb and flow of the tide, and upon ourgreat inland seas. I t may be done without making any encroachment upon the trial by jury, in the legitimate use of that institution.I do not say, it must be done SO.126Wayne had a wildly expansive view of both admiralty jurisdiction andthe power of Congress and the judiciary to define it.

First argued during the term Waring was decided, New JerseySteam Navigation Company v. Merchants' Bank 127 followed in 1848after reargument. On January 13, 1840, the steamboat Lexington,which ran a regular packet service between New York City and Stonington, Connecticut, burned and sank in Long Island Sound. Severalthousand dollars in specie belonging to Merchants' Bank were lost.Merchants' Bank subsequently sued on the contract for carriage. Relying on the traditional argument that contracts formed within thebody of a county were not cognizable in admiralty, New Jersey Steamchallenged the district court's jurisdiction.

Justice Nelson, writing for the majority, conceded that if "the124. 4 F. Cas. 654 (C.C.D. Ga. 1844) (No. 2,129).125. Id. at 658.126. Id.127. 47 U.S. (6 How.) 344.

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183986] DEVELOPMENT OF ADMIRALTYgrant of power in the Constitution had reference to the jurisdiction ofthe admiralty in England at the time, and is to be governed by it,"then there would be no jurisdiction in admiralty.128 He shied awayfrom Wayne's approach, though. Instead, he pointed to the "practicalconstruction" which the constitutional grant had received in the legislature and federal judiciary at all levels. 129 Using the JUdiciary Act of1789 and the Court's decision in La Vengeance, Nelson argued that"at a very early day" American practice had diverged from the English.I30 He also noted that contracts of shipwrights, materialmen, andpilots were regularly heard in the district courts. 131 He concluded thatthe purely incidental fact that the action was in personam was insufficient to take the case out of admiralty. 132 Whereas Wayne had madesome attempt to find historical support antedating the constitutionalgrant to support his interpretation, Nelson considered it sufficient torely on later interpretations. Again, there was the implicit suggestionthat Congress and the federal judiciary had unlimited power to defineadmiralty jurisdiction.

Woodbury wrote the dissent in Waring,133 with two justices generally concurring in his dissent. The burden ofWoodbury's argumentwas that it was the Court's responsibility to interpret admiralty jurisdiction according to the received tradition until Congress chose to enact legislation, such as the Great Lakes navigation act, whichexpanded the jurisdiction of the district courts. In this way, the highlyprized right to trial by jury could be retained and the sometimes noxious effects of admiralty jurisdiction and maritime law mitigated. 13 4Daniel, the sole dissenter I35 in New Jersey Steam NavigationCompany, did not share Woodbury's somewhat complacent willing

128. Id. at 386.129. Id.130. Id. at 386-87.131. Id. at 390-91.132. Id. at 390.133. Justices Daniel and Grier concurred in the dissent.134. Waring, 46 U.S. at 492-96. Woodbury had done extensive research on the issue

of admiralty jurisdiction in preparation for his opinion in United States v. New BedfordBridge, 27 F. Cas. 91 (C.C.D. Mass. 1847) (No. 15,867), and had discovered several statereporters which mentioned the statutes of Richard II. See KILTY, A REPORT OF ALLSUCH ENGLISH STATUTES AS EXISTED AT THE TIME OF THE FIRST EMIGRATION OF THEPEOPLE OF MARYLAND . . . 223 (1811); Commonwealth v. Gaines, 4 Va. (2 Va. Cas) 172(1819). See his concurrence in New Jersey Steam Navigation Company, 47 U.S. at 422.Woodbury concurred in upholding jurisdiction in this case because he thought the actionsounded in tort on the high seas.

135. Justices Catron and Woodbury concurred in the judgment of the Court on theground that the action sounded in maritime tort against a bailee.

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184 WESTERN NEW ENGLAND LAW REVIEW [Vol. 8:157ness to accept congressional expansion as a means of giving jurisdiction to the district courts. Daniel took the same line of argument asJohnson had in Ramsay. Daniel argued that English precedent controlled and that admiralty jurisdiction was fixed according to the practice in England in 1789.136 He marshalled an impressive body ofsupport from English cases and commentaries. Like Johnson, he alsorelied on the few reported cases from the state admiralty courts duringthe Confederation to show to what extent admiralty jurisdiction wasknown and practiced in the United States immediately before theadoption of the Constitution. 137 He considered the majority's behavior to be wholly inappropriate in a government of explicitly designatedpowers. He concluded that the case was "palpably a proceeding inpersonam upon an express contract, entered into between the parties inthe city of New York" over which admiralty could have no jurisdiction whatsoever.138

Waring and New Jersey Steam Navigation Company were authority for the denial of all English precedent and the assumption of allmaritime contracts. The Court had not offered to delineate admiraltyjurisdiction except to establish the limitation of tidewater apparentlyas a rule of convenience. The confusion concerning what Congresscould and could not do and whether the Court might be able to actwithout Congress appalled states' righters like Daniel. Even morealarming was the Court's willingness to rely on the most tenuous ofinferences in the historical record to support expansion of jurisdiction.This use of the record suggested a desire to assume power at all costs.The final blow to the traditionalists came in Genesse Chief v. Fitz hugh,139 which involved a collision of a sailing vessel and a steamboaton Lake Ontario. The defendants challenged the Great Lakes navigation act of 1845. At issue was the much vaunted power ofCongress tocreate admiralty jurisdiction. The defendants' counsel clearly laid outthe dangers implicit in sustaining constitutionality:

If this law can be sustained, it is not perceived why Congressmay not extend the jurisdiction of the federal courts to every case ofcontract or tort, growing out of the extensive trade and commerce,now carried on, by land and water, among the States of the Union;and thus draw within the cognizance of these courts one half of thelitigation of the country.l40136. New Jersey Steam Navigation Company, 47 U.S. at 396-97.137. Id. at 397-410.138. Id. at 416.139. 53 U.S. (12 How.) 443 (1851).140. Id. at 448.

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185986] DEVELOPMENT OF ADMIRALTYWhatever the benefits were of a uniform commercial law, such a lawimperilled states' rights.

Chief Justice Taney peremptorily rejected the idea that the actwas based on the Commerce Clause, which almost everyone thoughtwas the case, by distinguishing sharply between jurisdictional issuesand regulation of commerce. 141 He upheld the act under the constitutional grant of admiralty jurisdiction, arguing that the limitation totidewater was based on a fundamental misapprehension of historicalfact. English geography made tidewater and navigable water synonymous. American courts were accustomed to the forms of Englishpleadings and had simply carried over the allegation of ebb and flow ofthe tide without examining its functional content.142 The real test ofadmiralty jurisdiction was whether the waters in question were navigable in fact. I f so, admiralty had jurisdiction and the presence or absence of a tide was immaterial. 143

Taney bolstered his analysis by referring to the clause in the Judiciary Act of 1789 which gave admiralty jurisdiction of waters navigable from the sea. l4 4 This implied one limitation on what could beconsidered navigable waters for the purposes of admiralty jurisdiction.He went further, though, and imposed the limitation that the waterscarry commerce between two or more states or territories. 145 Thus,Taney used the Commerce Clause's underlying principle to check admiralty jurisdiction.

Genesse Chief is frequently cited as an example of Taney's pragmatic nationalism. 146 Certainly, it bears the hallmark of Taney's typical avoidance of doctrinaire solutions and constitutional formalism inthe interest of practical accommodation. Taney was careful to emphasize the international character of admiralty jurisdiction and the advantages of admiralty jurisdiction "for the safety and convenience ofcommerce, and the speedy decision of controversies, where delaywould often be ruin."147 Yet, such considerations certainly seemedpremised upon the judiciary's "views of expediency and necessity," asthe sole dissenter Daniel bitterly pointed OUt. 148

141. Id. at 451-52.142. Id.143. Id. at 454.144. Id. at 457.145. Id. at 454.146. See, e.g., R. NEWMYER, THE SUPREME COURT UNDER MARSHALL AND TA

NEY 112 (1968).147. Genesee Chief, 53 U.S. at 453-54.148. Id. at 465.

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186 WESTERN NEW ENGLAND LAW REVIEW [Vol. 8:157Genesse Chief nevertheless provided stability. While it was truethat admiralty assumed jurisdiction over inland waterways, Taney hadmasterfully dissolved the confusion and tension which had surroundedthe exercise of admiralty jurisdiction in the district and circuit courts.Wayne in Waring and Nelson in New Jersey Steam Navigation Com

pany had succeeded.in shearing admiralty jurisdiction from any principled standards. These decisions gave the impression that Congress, byvirtue of the Commerce Clause, could amend jurisdiction. To put anew face on the Commerce Clause by infusing the federal court systemwith jurisdiction under its aegis was an extremely risky undertaking.This difficulty justified a pragmatic response fixing admiralty jurisdiction by a workable formula and, at the same time, extending its benefits to a larger community.From the point of view of judicial administration, it made senseto extend admiralty jurisdiction to inland waterways. District courts

in Kentucky, New York, and Pennsylvania had for some time beenhearing cases arising on nontidal waters. 149 It seemed pointless to distinguish between cases arising on tidal and non idal water when theactions were identical in character.Daniel, in dissent, lamented reliance on the alleged jurisdiction ofthe vice-admiralty courts which "no investigation has ever been able toplace upon any clear and indisputable authority." 150 He was appalledby the "doctrine at present promulged [sic] by this court, which isbased upon assumptions still more irregular in my view, still moredangerous than that above adverted to."151The last sustained dissents on admiralty jurisdiction over inlandwaterways appeared in Jackson v. Magnolia. 152 Two steamboats hadcollided in the Alabama River, which was wholly within the state ofAlabama and debouched into the Gulf of Mexico, about two hundredmiles above the ebb and flow of the tide.Justice Grier, who had sided with the dissent in Waring, wrotethe majority opinion sustaining jurisdiction. The defendants arguedthat the district court lacked jurisdiction because the collision occurred above tidewater and within the body of a county.153The defendants relied on the fact that the Alabama River, unlikemost other inland waterways, lay wholly within the state of Alabama

149. See Note, From Judicial Grant to Legislative Power: The Admiralty Clause inthe Nineteenth Century, 67 HARv. L. REV. 1214, 1218 nn. 28, 29 (1954).150. Genesee Chief, 53 U.S. at 464.151. Id.152. 61 U.S. (20 How.) 296 (1857).153. Id. at 298.

http:///reader/full/succeeded.inhttp:///reader/full/succeeded.in

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187986] DEVELOPMENT OF ADMIRALTYand that, therefore, actions arising from occurrences thereon werematters for state adjudication. Grier responded that the states' surrender of admiralty jurisdiction to the federal government in 1789 included "jurisdiction over the harbors, creeks, inlets, and publicnavigable waters, connected with the sea."IS4 Therefore, he argued,there was no distinction between waters which flowed through or bytwo or more states and waters which lay wholly within a state. This,coupled with the Court's rejection of English precedent as binding inWaring, completely undermined any argument based on the purelylocal nature of the occurrence. ISS

The defendants also argued that the Court should narrowly construe Genesee Chief They suggested that the Great Lakes navigationact had conferred jurisdiction only over specified waterways which didnot include the Alabama River. IS6 Grier did not dispute the implication that Congress must act before the district courts could assumejurisdiction over nontidal waters. Rather, he pointed out that, in theJudiciary Act of 1789, Congress had in fact given the district courtsjurisdiction over waters "navigable from the sea."IS7 He said that theGreat Lakes navigation act was necessary to extend admiralty jurisdiction to the lakes because they were not included among waters towhi